United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 9, 2007 Decided May 29, 2007
No. 06-5232
PUBLIC CITIZEN,
APPELLANT
V.
UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF COLUMBIA,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 06cv00523)
Allison M. Zieve argued the cause for appellant. With her
on the briefs were Adina H. Rosenbaum, Brian Wolfman, and
Scott L. Nelson.
Martha Jane Perkins was on the brief for amici curiae
Representatives Henry R. Waxman, et al. in support of appellant
urging reversal.
Alisa B. Klein, Attorney, U.S. Department of Justice, argued
the cause for appellee. With her on the brief were Peter D.
Keisler, Assistant Attorney General, Jeffrey A. Taylor, U.S.
Attorney, Jonathan F. Cohn, Deputy Assistant Attorney
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General, and Mark B. Stern, Attorney. R. Craig Lawrence,
Assistant U.S. Attorney, entered an appearance.
Michael F. Altschul and Helgi C. Walker were on the brief
for amicus curiae CTIA-The Wireless Association in support of
appellee.
Before: TATEL and GARLAND, Circuit Judges, and
EDWARDS, Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge
EDWARDS.
EDWARDS, Senior Circuit Judge: Article I of the United
States Constitution requires that before proposed legislation may
“become[] a Law,” U.S. CONST. art. I, § 7, cl. 2, “(1) a bill
containing its exact text [must be] approved by a majority of the
Members of the House of Representatives; (2) the Senate [must]
approve[] precisely the same text; and (3) that text [must be]
signed into law by the President,” Clinton v. City of New York,
524 U.S. 417, 448 (1998). Public Citizen, a not-for-profit
consumer advocacy organization, filed suit in District Court
claiming that the Deficit Reduction Act of 2005, Pub. L. No.
109-171, 120 Stat. 4 (2006) (“DRA” or “Act”), is invalid
because the bill that was presented to the President did not first
pass both chambers of Congress in the exact same form. In
particular, Public Citizen contends that the statute’s enactment
did not comport with the bicameral passage requirement of
Article I, Section 7 of the Constitution, because the version of
the legislation that was presented to the House contained a
clerk’s error with respect to one term, so the House and Senate
voted on slightly different versions of the bill and the President
signed the version passed by the Senate. Public Citizen asserts
that it is irrelevant that the Speaker of the House and the
President pro tempore of the Senate both signed a version of the
proposed legislation identical to the version signed by the
President. Nor does it matter, Public Citizen argues, that the
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congressional leaders’ signatures attest that indistinguishable
legislative text passed both houses.
The District Court held that Public Citizen’s bicameralism
claim is foreclosed by the Supreme Court’s decision in
Marshall Field & Co. v. Clark, 143 U.S. 649 (1892). See Public
Citizen v. Clerk, U.S. Dist. Ct. for D.C., 451 F. Supp. 2d 109
(D.D.C. 2006). In that case, the Court held that the judiciary
must treat the attestations of “the two houses, through their
presiding officers” as “conclusive evidence that [a bill] was
passed by Congress.” Marshall Field, 143 U.S. 672-73. Under
Marshall Field, a bill signed by the leaders of the House and
Senate – an attested “enrolled bill” – establishes that Congress
passed the text included therein “according to the forms of the
Constitution,” and it “should be deemed complete and
unimpeachable.” Id. at 672-73. Recognizing that Marshall
Field’s “enrolled bill rule” prohibited it from questioning the
congressional pedigree of the bill signed by the Speaker and
President pro tempore, the District Court dismissed Public
Citizen’s complaint and denied its motion for summary
judgment. Public Citizen, 451 F. Supp. 2d 109.
Public Citizen has appealed, arguing that while Marshall
Field may prohibit the impeachment of an enrolled bill by
reference to congressional journals, the decision does not bar a
court from considering other evidence extrinsic to an enrolled
bill. Public Citizen claims further that even if Marshall Field
was not so restricted as originally decided, subsequent decisions
of the Court have narrowed the enrolled bill rule. Appellee and
CTIA – the Wireless Association (“CTIA”), appearing as amicus
curiae, urge affirmance and contend that Public Citizen lacks
standing to challenge the DRA.
We agree with the District Court that the enrolled bill rule
of Marshall Field controls the disposition of this case. We
therefore affirm the judgment of the District Court. We find it
unnecessary to determine whether Public Citizen has standing
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to bring suit, because we conclude that the Marshall Field rule
of dismissal “represents the sort of ‘threshold question’ [that]
. . . may be resolved before addressing jurisdiction.” Tenet v.
Doe, 544 U.S. 1, 6 n.4 (2005).
I. BACKGROUND
A. “Engrossed Bills” and “Enrolled Bills” in the House and
Senate
Congress has established specific procedures governing
passage of a bill:
[1] Every bill . . . in each House of Congress shall, when
such bill . . . passes either House, be printed, and such
printed copy shall be called the engrossed bill . . . .
[2] Said engrossed bill . . . shall be signed by the Clerk of
the House or the Secretary of the Senate, and shall be sent
to the other House, and in that form shall be dealt with by
that House and its officers, and, if passed, returned signed
by said Clerk or Secretary.
[3] When such bill . . . shall have passed both Houses, it
shall be printed and shall then be called the enrolled bill, . . .
signed by the presiding officers of both Houses and sent to
the President of the United States.
1 U.S.C. § 106. An “engrossed bill” is thus one that has passed
one chamber of Congress, while an “enrolled bill” has passed
both the House and the Senate.
B. Public Citizen’s Challenge to the DRA
On February 8, 2006, President Bush signed a budget bill
known as the Deficit Reduction Act of 2005. In ten titles, the
DRA amends a variety of familiar statutes, including the Federal
Deposit Insurance Act, the Communications Act of 1934, and
the Social Security Act. The provisions of the DRA are
sweeping: the Act, inter alia, effects extensive changes to
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Medicare and Medicaid laws, provides relief for victims of
Hurricane Katrina, creates a program through which households
may obtain coupons to defray the cost of digital-to-analog
converter boxes for their televisions, and, significantly, for
purposes of this law suit, amends the U.S. Code to increase the
filing fee for civil actions in federal district courts from $250 to
$350.
Approximately six weeks after the President signed the
DRA, Public Citizen filed a complaint against the Clerk of the
U.S. District Court for the District of Columbia (“Clerk”),
arguing that as an organization that routinely files civil suits, it
anticipated having to pay the $100 fee increase on a regular
basis. Public Citizen asked the District Court to declare the Act
unconstitutional and compel the Clerk to maintain the $250
filing fee.
The facts in this case are straightforward and largely
undisputed. Nonetheless, on review of a motion to dismiss, we
“must treat the complaint’s factual allegations as true . . . and
must grant [Public Citizen] the benefit of all inferences that can
be derived from the facts alleged.” Holy Land Found. for Relief
& Dev. v. Ashcroft, 333 F.3d 156, 165 (D.C. Cir. 2003) (internal
quotation marks omitted). We will therefore recite the facts
underlying the complaint as they have been presented by Public
Citizen.
According to the complaint, in the Fall of 2005, the House
and Senate passed different versions of a budget bill referred to
as S. 1932. To iron out the differences, the legislation was sent
to a conference committee. The committee produced a
conference report which failed to pass the Senate. Shortly
thereafter the Senate passed an amended version of S. 1932
wherein § 5101 specified a 13-month duration of Medicare
payments for certain durable medical equipment. However,
when the Senate clerk transmitted the engrossed S. 1932 to the
House, he mistakenly changed § 5101 of the bill to reflect a 36-
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month duration of payments for durable medical equipment
rather than the 13-month duration actually approved by the
Senate. The House voted on this engrossed bill, including the
erroneous duration figure. Because the legislation originated in
the Senate, the House returned it to the Senate for enrollment.
The Senate clerk, recognizing the transcription error in the
engrossed bill, altered the text of the enrolled bill so that it
included a 13-month rather than a 36-month duration. The
version of the DRA signed by the presiding officers contains the
13-month figure. Thus, since the 13-month duration term in the
enrolled bill passed the Senate but not the House, the President
signed legislation that did not actually pass both houses of
Congress in precisely the same form.
After filing its complaint, Public Citizen moved for
summary judgment. The Clerk lodged a motion to dismiss the
case under Federal Rule of Civil Procedure 12(b)(6). The
District Court denied Public Citizen’s motion and granted
dismissal, concluding that even if it accepted Public Citizen’s
allegations as true, the bicameralism challenge still “must fail”
under the enrolled bill rule of Marshall Field. Public Citizen,
451 F. Supp. 2d at 128. Public Citizen now appeals the
dismissal of its complaint and denial of its motion for summary
judgment.
II. ANALYSIS
A. Standard of Review
The District Court dismissed Public Citizen’s complaint for
failure to state a claim upon which relief may be granted, see
FED. R. CIV. P. 12(b)(6), and denied its motion for summary
judgment, see FED. R. CIV. P. 56. A dismissal for failure to state
a claim under Rule 12(b)(6) is reviewed de novo – meaning that
this court applies the same decisional principles as the District
Courts. See, e.g., Kingman Park Civic Ass’n v. Williams, 348
F.3d 1033, 1039-40 (D.C. Cir. 2003). A denial of a motion for
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summary judgment typically is not a final order, so it is
ordinarily not appealable. See, e.g., Chaplaincy of Full Gospel
Churches v. England, 454 F.3d 290, 296 (D.C. Cir. 2006).
However, an order denying a motion for summary judgment
may be reviewed on appeal “where it is accompanied by a final
order disposing of all issues before the district court.” Jones-
Hamilton Co. v. Beazer Materials & Servs., Inc., 973 F.2d 688,
694 n.2 (9th Cir. 1992). We review a denial of summary
judgment de novo. “The test to be applied in reviewing the
grant or denial of a summary judgment motion is that summary
judgment is proper only when there is no genuine issue of any
material fact or when viewing the evidence and the inferences
which may be drawn therefrom in the light most favorable to the
adverse party, the movant is clearly entitled to prevail as a
matter of law.” Pomerantz v. County of Los Angeles, 674 F.2d
1288, 1290 (9th Cir. 1982) (internal quotation marks omitted).
B. Standing and Other Threshold Issues
The Clerk and CTIA contend that Public Citizen cannot
meet the irreducible constitutional minimum of standing.
Appellee’s Br. at 30-32; Br. of Amicus Curiae at 19-27; see
Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc.,
528 U.S. 167, 180-81 (2000) (describing Article III standing
requirements). In particular, CTIA argues that, “in addition to
requiring injury-in-fact and causation, Article III obliges the
plaintiff to establish that the alleged injury is judicially
redressable. Because the putatively unconstitutional provision
of the DRA can be severed from the concededly valid remainder
of the Act, Public Citizen’s grievance concerning increased
filing fees simply would not be redressed by a favorable
decision in this appeal.” Br. of Amicus Curiae at 4 (citation
omitted). The Clerk concurs in this view, Appellee’s Br. at 30,
but argues in the alternative that we may affirm without
addressing standing, because Marshall Field erects a threshold
8
barrier to judicial inquiry, id. at 30 n.7. We agree that we may
affirm without reaching the issue of standing.
In Steel Co. v. Citizens for a Better Environment, the
Supreme Court held “that Article III jurisdiction is always an
antecedent question” to be answered prior to any merits inquiry.
523 U.S. 83, 101 (1998). The Court emphasized that in order to
dismiss a claim for failure “to state a cause of action” a court
must have “power to adjudicate the case.” Id. at 89. Therefore,
such a dismissal cannot be issued “before resolving a dispute”
concerning jurisdiction. Id. at 92. The Court noted, however,
that in some cases involving “extraordinary procedural
postures,” id. at 98, federal courts have permissibly resolved the
merits of a dispute without first addressing an outstanding
jurisdictional question, see id. at 98-101. The Court added that
some of these cases “must be acknowledged to have diluted the
absolute purity of the rule that Article III jurisdiction is always
an antecedent question.” Id. at 101; see also id. at 110-11
(“[T]he Court’s opinion should not be read as cataloging an
exhaustive list of circumstances under which federal courts may
exercise judgment in reserv[ing] difficult questions of . . .
jurisdiction when the case alternatively could be resolved on the
merits in favor of the same party.”) (O’Connor, J., concurring)
(internal quotation marks and citation omitted).
Further diluting the “purity of the rule that Article III
jurisdiction is always an antecedent question,” the Court in
Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574 (1999),
observed that
[w]hile Steel Co. reasoned that subject-matter
jurisdiction necessarily precedes a ruling on the merits, the
same principle does not dictate a sequencing of
jurisdictional issues. “[A] court that dismisses on . . . non-
merits grounds such as . . . personal jurisdiction, before
finding subject-matter jurisdiction, makes no assumption of
law-declaring power that violates the separation of powers
9
principles underlying . . . Steel Company.” It is hardly
novel for a federal court to choose among threshold grounds
for denying audience to a case on the merits. Thus, as the
Court observed in Steel Co., district courts do not overstep
Article III limits when they decline jurisdiction of state-law
claims on discretionary grounds without determining
whether those claims fall within their pendent jurisdiction,
or abstain . . . without deciding whether the parties present
a case or controversy. . . .
Id. at 584-85 (internal citations omitted); see also Seale v. INS,
323 F.3d 150, 155 (1st Cir. 2003) (“Despite sweeping language
. . . Steel Co. does not, in all instances, create an absolute rule
against bypassing questions of a jurisdictional nature.”).
Doubts about Steel Co.’s reach were significantly quelled
in Tenet when the Court held that a federal court is not obliged
to decide jurisdictional issues before certain nonjurisdictional
“rule[s] designed not merely to defeat the asserted claims, but to
preclude judicial inquiry.” Tenet, 544 U.S. at 6 n.4. In Tenet,
the Court held that the Totten v. United States, 92 U.S. 105
(1875), rule of dismissal may be addressed before finding
jurisdiction. Tenet, 544 U.S. at 6 n.4. Totten involved a suit
brought by “a self-styled Civil War spy [against] . . . the United
States to enforce its obligations under their secret espionage
agreement.” Id. at 3. The Court concluded that “public policy
forb[ids]” such a suit, id., since “[e]ven a small chance that some
court will order disclosure of a source’s identity could well
impair intelligence gathering and cause sources to close up like
a clam,” id. at 11 (internal quotation marks omitted). When two
alleged Cold War spies brought a similar suit, the Tenet Court
held that “the Totten rule of dismissal . . . represents the sort of
‘threshold question’ [that] . . . may be resolved before
addressing jurisdiction,” explaining that “[i]t would be
inconsistent with the unique and categorical nature of the Totten
bar – a rule designed not merely to defeat the asserted claims,
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but to preclude judicial inquiry – to first allow discovery or
other proceedings in order to resolve the jurisdictional
question.” Id. at 6 n.4.
Justice Scalia joined the majority but wrote separately to
emphasize his belief that Tenet does not broaden Steel Co. He
argued that when the majority opinion
describes “the unique and categorical nature of the Totten
bar . . . ,” it is assuredly not describing the mere everyday
absence of a cause of action. As applied today, the bar of
Totten is a jurisdictional one.
Of course even if it were not, given the squarely
applicable precedent of Totten, the absence of a cause of
action is so clear that [the] claims are frivolous –
establishing another jurisdictional ground for dismissal that
the Steel Co. majority opinion acknowledges.
Id. at 12 (Scalia, J., concurring) (internal citation omitted).
Although the majority opinion does not say explicitly whether
Totten erects a “jurisdictional” bar, it does state that the rule
stems from public policy concerns without mentioning Article
III limitations. More significantly, the Tenet Court phrases its
holding in terms that undermine Justice Scalia’s contention:
“[T]he Totten rule of dismissal . . . represents the sort of
‘threshold question’ [that] . . . may be resolved before
addressing jurisdiction.” Id. at 6 n.4 (emphasis added).
Any remaining doubt as to whether a federal court may, in
appropriate circumstances, dismiss a case on prudential grounds
prior to establishing its jurisdiction was put to rest in Sinochem
International Co. v. Malaysia International Shipping Corp., 127
S. Ct. 1184 (2007). In Sinochem, the Supreme Court applied
Tenet to another rule of dismissal “designed . . . to preclude
judicial inquiry.” Tenet, 544 U.S. at 6 n.4. The Court held that
“a district court has discretion to respond at once to a . . . forum
non conveniens plea, and need not take up first any other
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threshold objection [such as] . . . whether it has authority to
adjudicate the cause.” Sinochem, 127 S. Ct. at 1188. Since
dismissal pursuant to the forum non conveniens doctrine – like
a Totten dismissal – “den[ies] audience to a case on the merits,”
the Court reasoned, it “does not entail any assumption . . . of
substantive ‘law-declaring power.’” Id. at 1191-93 (quoting
Ruhrgas, 526 U.S. at 584-85). No one would contend that forum
non conveniens constitutes a jurisdictional ground for dismissal.
Indeed, the Sinochem decision refers to a district court’s
“discretion to” dismiss pursuant to the doctrine. Id. at 1188.
Sinochem thus firmly establishes that certain non-merits,
nonjurisdictional issues may be addressed preliminarily, because
“‘[j]urisdiction is vital only if the court proposes to issue a
judgment on the merits.’” Id. at 1191-92 (quoting Intec USA,
LLC v. Engle, 467 F.3d 1038, 1041 (7th Cir. 2006)).
There are two lines of analysis pursuant to which it might
be argued that Marshall Field’s enrolled bill rule creates a
“jurisdictional” bar. First, because the Court based its holding
in part upon separation of powers concerns, see Marshall Field,
143 U.S. at 673, the rule could be viewed as an application of
the political question doctrine which is derived from Article III’s
“controversy” requirement, Massachusetts v. EPA, 127 S. Ct.
1438, 1452 (2007). See Baker v. Carr, 369 U.S. 186, 214-15
(1962) (describing Marshall Field as involving considerations
similar to those in Coleman v. Miller, 307 U.S. 433 (1939),
which were “committed to congressional resolution” and based
on “criteria of decision that necessarily escape[] the judicial
grasp”); Metzenbaum v. FERC, 675 F.2d 1282, 1287 (D.C. Cir.
1982) (per curiam) (citing Marshall Field as an application of
the political question doctrine); see also United States v. Sitka,
845 F.2d 43, 46 (2d Cir. 1988) (“Another doctrine closely
related to – if not inherent in – the political question doctrine is
the so-called ‘enrolled bill rule.’”); United States v. Stahl, 792
F.2d 1438, 1440-41 (9th Cir. 1986) (characterizing extension of
the enrolled bill rule as an application of the political question
12
doctrine). But see INS v. Chadha, 462 U.S. 919, 943 (1983)
(describing Marshall Field as “address[ing] and resolv[ing] the
question whether” an attested enrolled bill does not become a
law if it has not in fact been passed by Congress); cf. Vander
Jagt v. O’Neill, 699 F.2d 1166, 1170 (D.C. Cir. 1983) (clarifying
prudential nature of abstention in case challenging committee
seat distribution). Second, because the enrolled bill rule
foreordains the failure of Public Citizen’s challenge, Marshall
Field also could be seen as depriving the courts of subject matter
jurisdiction with respect to claims that are “so . . . foreclosed by
prior decisions of [the Supreme] Court . . . as not to involve a
federal controversy.” Steel Co., 523 U.S. at 89 (internal
quotation marks omitted).
In any event, the Marshall Field rule most certainly falls
within the ambit of Tenet and Sinochem. The District Court
“assume[d] without deciding that [the Clerk’s] motion to dismiss
. . . [was] properly made pursuant to [Rule] 12(b)(6),” since it
concluded that “the label applied d[id] not affect [its] analysis or
outcome.” Public Citizen, 451 F. Supp. 2d at 113 n.9. But the
enrolled bill rule does not authorize a merits dismissal for failure
to state a claim. Rather, like the Totten rule of dismissal and
forum non conveniens, the enrolled bill rule is “designed not
merely to defeat the asserted claims, but to preclude judicial
inquiry,” Tenet, 544 U.S. at 6 n.4. Where an attested enrolled
bill exists, a court must dismiss prior to adjudicating a
bicameralism challenge, “‘denying audience to [the] case on the
merits,’” Sinochem, 127 S. Ct. at 1191 (quoting Ruhrgas, 526
U.S. at 585). At a minimum, the Marshall Field rule is thus a
non-merits threshold ground for dismissal. We therefore need
not decide whether the enrolled bill rule creates a jurisdictional
bar. Nor is it necessary for us to determine whether Public
Citizen lacks standing. Accordingly, we will proceed directly
to Marshall Field dismissal.
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C. The Enrolled Bill Rule
1. Marshall Field Squarely Applies
In Marshall Field, importers protesting duties levied against
them sought to have the Tariff Act of 1890 declared
unconstitutional. 143 U.S. at 662-69. According to the
importers, even though the Speaker of the House and the
President of the Senate had endorsed the bill as having passed
the bodies over which they presided, “it [was] shown by the
Congressional record of proceedings, reports of committees of
each house, reports of committees of conference, and other
papers printed by authority of Congress” that part of the bill
passed was missing in the version enrolled. Id. at 668-69. The
importers argued that the Journal Clause, see U.S. CONST. art. I,
§ 5, cl. 3 (“Each House shall keep a Journal of its Proceedings,
and from time to time publish the same, excepting such Parts as
may in their Judgment require Secrecy; and the Yeas and Nays
of the Members of either House on any question shall, at the
Desire of one fifth of those Present, be entered on the Journal.”),
enshrines congressional journals – not the enrolled bill – as “the
best, if not conclusive, evidence upon the issue as to whether a
bill was, in fact, passed by the two houses of Congress.”
Marshall Field, 143 U.S. at 670.
The Court rejected this interpretation of the bicameral
passage requirement, holding that the object of the Journal
Clause is to ensure transparency in legislative activities, not to
“prescribe the mode in which the fact of the original passage of
a bill by the House of Representatives and the Senate shall be
authenticated, or preclude Congress from adopting any mode to
that end which its wisdom suggests.” Id. at 670-71.
Recognizing that Congress had long chosen signing of the
enrolled bill by the presiding members of both houses as its
method of authentication, the Court held that “the judicial
department [must] act upon that assurance, and . . . accept, as
14
having passed Congress, all bills authenticated in the manner
stated.” Id. at 671-72.
The Marshall Field Court rested this conclusion upon two
rationales. First, the Court reasoned by reference to public
policy:
[W]e cannot be unmindful of the consequences that must
result if this court should feel obliged, in fidelity to the
Constitution, to declare that an enrolled bill, on which
depend public and private interests of vast magnitude, and
which has been authenticated by the signatures of the
presiding officers of the two houses of Congress, and by the
approval of the President, and been deposited in the public
archives, as an act of Congress, was not in fact passed by
the House of Representatives and the Senate, and therefore
did not become a law.
Id. at 670.
Better, far better, that a provision should occasionally find
its way into the statute through mistake, or even fraud, than
that every act . . . should at any and all times be liable to be
put in issue and impeached . . . . Such a state of uncertainty
in the statute laws of the land would lead to mischiefs
absolutely intolerable.
Id. at 675 (internal quotation marks omitted); see also id. at 676.
Second, the Court based its holding on separation of powers
concerns, citing “the respect due to a coördinate branch of the
government.” Id. at 673; see also id. at 676-77 (explaining that
“the spectacle of examination of [congressional proceedings by
the courts]” would “subordinate[] the legislature and disregard[]
that coequal position in our system of the three departments of
government” (internal quotation marks omitted)).
The Court crafted a clear rule: “[I]t is not competent for [a
party raising a bicameralism challenge] to show, from the
15
journals of either house, from the reports of committees or from
other documents printed by authority of Congress, that [an]
enrolled bill” differs from that actually passed by Congress. Id.
at 680. The only “evidence upon which a court may act when
the issue is made as to whether a bill . . . asserted to have
become a law, was or was not passed by Congress” is an
enrolled act attested to by declaration of “the two houses,
through their presiding officers.” Id. at 670, 672. An enrolled
bill, “thus attested,” “is conclusive evidence that it was passed
by Congress.” Id. at 672-73. “[T]he enrollment itself is the
record, which is conclusive as to what the statute is . . . .” Id. at
675 (internal quotation marks omitted).
In the case at bar, the record contains a copy of the DRA
bearing the signatures of then Speaker of the House of
Representatives Dennis Hastert and President pro tempore of the
Senate Ted Stevens. Where such an attested enrolled bill exists,
Marshall Field requires “the judicial department to act upon that
assurance, and to accept [the bill] as having passed Congress.”
Id. at 672. Even if “the Congressional record of proceedings,
reports of committees of each house, reports of committees of
conference, and other papers printed by authority of Congress,”
id. at 668-69, indicate that the House voted to enact a 36-month
duration of Medicare payments for certain durable medical
equipment while the Senate passed a 13-month figure, the courts
are barred from considering this extrinsic evidence. The District
Court therefore correctly dismissed Public Citizen’s complaint
pursuant to the enrolled bill rule.
2. Public Citizen’s Attempts to Distinguish and Narrow
Marshall Field
Public Citizen admits that the importers in Marshall Field
“offered exhibits other than the journals, such as excerpts from
the Congressional Record” and acknowledges the Court’s
references to “reports of committees [and] other documents
printed by authority of [C]ongress.” Appellant’s Br. at 24-25.
16
But Public Citizen argues that since the importers primarily
relied upon congressional journals and “journals are the only
evidence discussed” at length in the opinion, the Marshall Field
Court’s expansive statements regarding the conclusive nature of
the enrolled bill constitute “dicta going beyond what was
necessary to decide the case” and the decision should be read to
hold only that as between journals and an enrolled bill, the
enrolled bill is the superior evidence. Id. at 21-25.
We easily reject this attempt to distinguish Marshall Field
as a case concerned solely with congressional journals. As
noted above, the Court first held that “the enrollment itself is the
record, which is conclusive as to what the statute is,” and it
cannot be impeached by other materials. Marshall Field, 143
U.S. at 675 (internal quotation marks omitted). The Court then
confirmed that “it is not competent for the appellants to show,
from the journals of either house, from the reports of committees
or from other documents printed by authority of Congress, that
the enrolled bill . . . as finally passed, contained a section that
does not appear in the enrolled act.” Id. at 680 (emphasis
added).
Nothing in the Marshall Field opinion purports to limit
application of the enrolled bill rule to journal-based challenges.
And neither of the Court’s rationales applies solely to
impeachment by journals. No less “uncertainty in the statute
laws” upon which “depend public and private interests of vast
magnitude,” id. at 670, 675 (internal quotation marks omitted),
would result from allowing collateral attack of the enrolled bill
by congressional documents other than journals. And “the
spectacle of examination of journals by [the courts]” no more
“subordinates the legislature,” id. at 676-77 (internal quotation
marks and emphasis omitted), than does inspection of other
materials. Marshall Field’s plain language and justification
cannot be read to create a rule of dismissal limited to the claims
17
of plaintiffs who rely primarily upon journals to rebut an attested
enrolled bill.
Public Citizen also contends that even if Marshall Field was
not so restricted as originally decided, subsequent precedent has
narrowed its holding. We view the legal landscape quite
differently. First, the Supreme Court has applied the enrolled
bill rule, see Harwood v. Wentworth, 162 U.S. 547, 562 (1896)
(taking attested enrolled bill of Arizona legislature “to have been
enacted in the mode required by law, and to be
unimpeachable”), and extended Marshall Field’s holding to
claims challenging state ratification of constitutional
amendments, see Leser v. Garnett, 258 U.S. 130, 137 (1922)
(“As the Legislatures of Tennessee and of West Virginia had
power to [ratify the Nineteenth Amendment], official notice to
the Secretary [of State], duly authenticated, that they had done
so was conclusive upon him, and, being certified to by his
proclamation, is conclusive upon the courts.”); cf. Sitka, 845
F.2d at 46-47 (same where Sixteenth Amendment was
challenged); Stahl, 792 F.2d at 1440-41 (same); United States v.
Thomas, 788 F.2d 1250, 1253-54 (7th Cir. 1986) (same).
Furthermore, the Courts of Appeals have consistently
invoked Marshall Field in refusing to conduct other inquiries
“into the internal governance of Congress.” Mester Mfg. Co. v.
INS, 879 F.2d 561, 571 (9th Cir. 1989); see, e.g., United States
v. Campbell, No. 06-3418, 2007 WL 1028785, at *1 (7th Cir.
Apr. 3, 2007) (unpublished order) (“Campbell proposes to argue
that 18 U.S.C. § 3231, which gives district judges jurisdiction to
hear criminal prosecutions, has no legal effect because the
House and Senate did not vote on it in the same session of
Congress. . . . The enrolled bill rule prevents looking behind
laws in th[at] way . . . .”); Mester Mfg., 879 F.2d at 570-71
(holding that “[i]n the absence of express constitutional
direction, [the courts must] defer to the reasonable procedures
Congress has ordained for its internal business” where an
18
employer “assert[ed] that [the Immigration Reform and Control
Act of 1986] is entirely null and void, as unconstitutionally
passed . . . because Congress has no constitutional authority to
present a bill after adjournment sine die”); Gibson v. Anderson,
131 F. 39, 42-43 (9th Cir. 1904) (“The appellant cannot go
behind the authenticated published statutes of the United States,
and show that an act which purports to have been approved on
a certain date was in fact approved on a different date.”); cf. Am.
Fed’n of Gov’t Employees v. United States, 330 F.3d 513, 522
(D.C. Cir. 2003) (rejecting the argument that a statute may only
be supported by a rational basis included in congressional papers
and citing Marshall Field for the proposition that “Congress has
broad discretion in determining what must be published in the
official record”).
Finally, the Supreme Court recently reaffirmed Marshall
Field in a case clarifying the limits of the enrolled bill rule:
[T]he Marshall Field doctrine does not preclude us from
asking whether the statute means something other than what
the punctuation dictates. . . . The Marshall Field doctrine
concerns the nature of the evidence the Court [may]
consider in determining whether a bill had actually passed
Congress; it places no limits on the evidence a court may
consider in determining the meaning of a bill that has
passed Congress.
U.S. National Bank of Oregon v. Indep. Ins. Agents of Am., Inc.,
508 U.S. 439, 455 n.7 (1993) (internal quotation marks and
citation omitted); cf. United States v. Pabon-Cruz, 391 F.3d 86,
99-100 (2d Cir. 2004) (finding Marshall Field irrelevant where
the court’s “task . . . [was] not to doubt the accuracy or validity
of [a bill’s] language, but merely to determine what Congress
intended by it”); Cherry v. Steiner, 716 F.2d 687, 693 (9th Cir.
1983) (“The enrolled bill doctrine . . . forestall[s] judicial
inquiry into procedural irregularities occurring prior to the
enactment of bills, not inherent defects in bills as enrolled.”).
19
Even in the face of this evidence, Public Citizen argues that
“there can be no question that courts may look behind an
enrolled bill to assess whether a law was passed.” Appellant’s
Br. at 10. Appellant rests this claim on the concluding sentence
of an oblique footnote in United States v. Munoz-Flores, 495
U.S. 385 (1990), see id. at 391 n.4, a case decided three years
prior to the Court’s reaffirmance of Marshall Field in U.S.
National Bank of Oregon.
In Munoz-Flores, a Magistrate ordered the defendant to pay
a special assessment for each federal misdemeanor to which he
pled guilty. 495 U.S. at 388. Munoz-Flores argued that the
statute authorizing such assessments “was passed in violation of
the Origination Clause” which “mandates that ‘[a]ll Bills for
raising Revenue shall originate in the House of
Representatives.’” Id. at 387-88 (quoting U.S. CONST. art. I, §
7, cl. 1). In an earlier Origination Clause decision, the Court
avoided determining whether the enrolled bill rule applies to
such challenges by first concluding that the act before it was
“clearly not a revenue bill.” See Twin City Bank v. Nebeker, 167
U.S. 196, 200-03 (1897). Although the Munoz-Flores Court
likewise ultimately decided that the bill at issue “was not one for
raising revenue” and therefore found “consideration of [the]
origination question unnecessary,” 495 U.S. at 401 (internal
quotation marks omitted), it first addressed justiciability. The
Court framed its holding that Munoz-Flores’ claim was
justiciable in terms of the traditional political question doctrine
under Baker v. Carr, never mentioning Marshall Field in the
text of its opinion. Id. at 389-96.
Justice Scalia disagreed with the Court’s justiciability
determination, stating that the Marshall Field “principle, if not
the very same holding, [led him] to conclude that federal courts
should not undertake an independent investigation into the
origination of [a] statute . . . [where] . . . [t]he designation ‘H. J.
Res.’ (a standard abbreviation for ‘House Joint Resolution’)
20
attests that the legislation originated in the House.” Id. at 408-
10 (Scalia, J., concurring in the judgment). The Munoz-Flores
Court responded in a footnote:
JUSTICE SCALIA . . . contends that Congress’ resolution of
the constitutional question in passing the bill [with an “H.
J. Res.” designation] bars this Court from independently
considering that question. The only case he cites for his
argument is Marshall Field . . . . But Field does not support
his argument. That case concerned “the nature of the
evidence” the Court would consider in determining whether
a bill had actually passed Congress. . . . The Court rejected
[the importers’] interpretation of the Journal Clause,
holding that the Constitution left it to Congress to
determine how a bill is to be authenticated as having
passed. In the absence of any constitutional requirement
binding Congress, we stated that “[t]he respect due to
coequal and independent departments” demands that the
courts accept as passed all bills authenticated in the manner
provided by Congress. Where, as here, a constitutional
provision is implicated, Field does not apply.
Id. at 391 n.4 (internal citations omitted).
Public Citizen reads the last lines of this footnote to
effectively distinguish between Journal Clause challenges on
one hand and Origination Clause and Bicameralism Clause
challenges on the other:
The distinction made . . . is between requirements with
respect to the enactment of laws and requirements that do
not affect valid enactment. Thus, for example, the
Constitution requires Congress to keep journals, but neither
the Constitution nor any statute conditions the enactment of
laws on the keeping of journals or imposes requirements on
the content of journals. Accordingly, as in Marshall Field,
the content of congressional journals cannot be used to
21
impeach the validity of an enrolled bill that has been signed
. . . . On the other hand, the Constitution requires that
legislation to raise revenue originate in the House.
Therefore, as in Munoz-Flores, the courts may look beyond
an enrolled bill to determine whether a law has been passed
in accordance with that constitutional condition . . . .
At issue in this case is another requirement for the valid
enactment of law – the requirement that identical legislation
be passed in both the House and the Senate before it is
presented to the President for his signature. In accordance
with both Munoz-Flores and Marshall Field, the Court can
and should examine the evidence that this requirement has
been violated.
Appellant’s Br. at 10-11.
Public Citizen’s attempt to square the Munoz-Flores
footnote with Court precedent fails. In assessing appellant’s
claim, it is important to recall that Munoz-Flores did not in any
way involve the question raised in Marshall Field, i.e., whether
an authenticated enrolled bill had passed Congress. The
question instead was whether a provision that unquestionably
had passed Congress constituted a bill for raising revenue. It is
not plausible to think that the Court meant to overrule the
enrolled bill rule in the last two sentences of an obscure footnote
in a case that did not involve an application of the rule. Under
Public Citizen’s interpretation, the Munoz-Flores Court
overruled the time-tested Marshall Field decision sub silento in
a footnote, and then three years later inadvertently referenced
the purportedly defunct rule in U.S. National Bank of Oregon.
See 508 U.S. at 455 n.7. The argument collapses under its own
weight.
The last two sentences of the cited footnote in Munoz-
Flores defy easy comprehension. Nonetheless, the text of the
footnote is clear on one point: the Court did not mean to
22
overturn or modify the enrolled bill rule of Marshall Field. The
Court’s footnote in Munoz-Flores clearly states that “[t]he
respect due to coequal and independent departments demands
that the courts accept as passed all bills authenticated in the
manner provided by Congress.” 495 U.S. at 392 n.4 (internal
quotation marks omitted). The Court then says: “Where . . . a
constitutional provision is implicated, Field does not apply.” Id.
In other words, Marshall Field does apply in a case of the sort
at hand, where the court must “accept as passed [the bill]
authenticated in the manner provided by Congress.” Id. There
is nothing in the footnote to indicate that the Court meant to
distinguish between challenges arising under the Journal Clause
as opposed to challenges arising under the Origination Clause
and Bicameralism Clause, as Public Citizen suggests. Indeed,
the footnote appears unambiguous in reaffirming that there can
be no Bicameralism Clause challenge when a bill has been
authenticated in the manner provided by Congress. The text of
the footnote may be less than carefully crafted, but it does not
admit of the strained construction offered by appellant.
Even more problematic for Public Citizen is that, given our
finding that Marshall Field has not been overturned or modified
by Munoz-Flores, there can be no doubt that the application of
appellant’s theory to the case at bar is positively foreclosed by
Marshall Field. The decision in Marshall Field addressed a
bicameralism challenge, so for us to embrace Public Citizen’s
argument that the enrolled bill rule does not apply to
“requirement[s] for the valid enactment of law,” such as the
Bicameralism Clause, would be tantamount to narrowing
Marshall Field entirely out of existence. Public Citizen’s claim
that Marshall Field involved only a Journal Clause challenge
and no bicameralism challenge is belied by the facts of that case.
Although the importers sought support from the Journal Clause
in their attempt to impeach the attested enrolled bill, they
advanced a Bicameralism Clause challenge, just as Public
Citizen does.
23
We acknowledge that the language of the Munoz-Flores
footnote is cumbersome, making it difficult to discern precisely
what the Court meant to say. The footnote indicates that the
“H. J. Res.” moniker does not carry the conclusive weight in the
Origination Clause context that the signatures of the presiding
officers command in the Bicameralism Clause context. In the
text of its decision, the Munoz-Flores Court stated that
adjudication of an Origination Clause challenge despite the
existence of an “H. J. Res.” designation no more “express[es] a
lack of respect for the House of Representatives” than does any
other constitutional challenge. Id. at 390-91 (internal quotation
marks and alteration omitted). In light of this conclusion, the
Munoz-Flores footnote might be seen as a simple attempt, in
response to Justice Scalia’s contention to the contrary, to
distinguish Origination Clause challenges from Bicameralism
Clause challenges based on the lesser applicability of the
separation of powers rationale in the former context. This is
hardly a satisfying explanation, however. Alternatively, the
footnote might be viewed as an ex post interpretation of
Marshall Field. In other words, if in the post-Marshall Field
legal landscape any bicameralism challenge made in the face of
an attested enrolled bill really raises no constitutional claim, the
Munoz-Flores Court could have – with perfect hindsight –
treated the claim in Marshall Field itself as similarly implicating
no constitutional provision. This makes some sense. We need
not resolve the puzzle of the footnote, however, because we are
satisfied that the Court’s decision in Munoz-Flores does not
purport to overrule or modify the enrolled bill rule.
At bottom, Public Citizen asks that we set aside directly
controlling Supreme Court precedent in favor of an ambiguous
footnote. Public Citizen attempts to alter the balance, arguing
that the engrossed bill it proffers as evidence that the House
passed a 36-month duration figure is a “public record” far more
reliable than journals and one given “official status” when
Congress adopted 1 U.S.C. § 106 after the Court decided
24
Marshall Field. Appellant’s Br. at 31-34. But this is beside the
point, because the argument in no way undercuts the public
policy and separation of powers rationales that undergird the
enrolled bill rule. One need only look to the breadth of the DRA
to understand the “vast magnitude” of “public and private
interests” which depend upon the certainty of statutes. Marshall
Field, 143 U.S. at 670. And today, no less than in 1892, the
spectacle of courts directing legislative authentication
procedures and otherwise meddling in the inner workings of
Congress “disregards that coequal position . . . of the three
[branches] of government.” Id. at 676 (internal quotation marks
omitted).
The Supreme Court has repeatedly cautioned that we
“should [not] conclude [that its] more recent cases have, by
implication, overruled an earlier precedent.” Agostini v. Felton,
521 U.S. 203, 237 (1997). Therefore, even if we were inclined
to think that the Munoz-Flores footnote offers some implicit
support for Public Citizen’s position – and we are not – this
would not change the outcome that we reach today. The District
Court correctly decided that the enrolled bill rule governs the
disposition of this case.
III. CONCLUSION
For the reasons set forth above, we affirm the judgment of
the District Court.
So ordered.